Deep Cove father takes on Kiewit after son’s death

Anna Mehler Paperny, Global News, May 23 2013

On a rainy February afternoon in 2009, Sam Fitzpatrick was crushed to death when a boulder more than 1.5 metres in diameter tumbled downhill through his worksite near Toba Inlet, B.C., striking his head as he drilled rock.

He died almost instantly. He was 24.

Fitzpatrick and his younger brother Arlen were part of a crew working on a hydroelectric run-of-river project for which their employer Kiewit Corp. was a primary contractor.

The “inseparable” brothers, two years apart, had been saving up for a Whistler condo, their dad says.

A Worksafe BC investigation found site employees were tasked with unsafe assignments, given insufficient supervision and inadequate communication and were working below slopes that hadn’t been properly cleared of potentially loose material.

“We confirm that the employer committed high-risk violations with reckless disregard,” the appeal tribunal wrote, “however, we cannot conclude that the employer’s violations resulted in the young worker’s death.”

Kiewit, for its part, says ”inadequate procedures and supervision contributed to the circumstances” of Sam Fitzpatrick’s death.

“Since this accident took place we have made significant changes to the procedures and oversight of rock scaling operations to prevent this type of tragic accident,” spokesman Tom Janssen wrote in an emailed statement. “We continue to feel great sorrow for Sam’s family and friends and continue to offer our sincerest condolences.”

Omaha-based Kiewit is the international construction giant behind the $2.46-billion Port Mann Bridge, among many other high-profile B.C. projects.

Last month it was recognized – for the third year running – as one of the best employers in Canada among “large and multinational” companies.

Kiewit and its subsidiaries have been singled out for workplace safety excellence awards in more than half a dozen states over the past several years; its Ingleside, Tx. facility won a safety award in 2007, just four years after being penalized almost $294,000 for the deaths of two workers at the same site (the company said it changed its practices following the accident).

The company was named a “charter leader in health and safety” in Newfoundland in 2008 and received an Alberta Business Award of Distinction in 2010.
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Kiewit has also been accused of keeping accident figures artificially low by discouraging employees from reporting them.

In a 2005 report, California’s auditor noted a Kiewit-led consortium had a quarter the workplace accidents of other contractors working on the project.

But that wasn’t necessarily seen as a good thing.

“One element in [Kiewit's] safety program – the use of financial or other incentives as rewards for a safe workplace – may lead to the underreporting of injuries,” the report reads.

A year later, California’s Occupational Health and Safety division fined Kiewit’s joint venture several thousand dollars for failing to disclose workplace injuries. Kiewit appealed and ended up paying the full $5,790 fine but with two key changes: The “willful” characterization of one violation was downgraded to “regulatory”, and an addendum was added outlining the consortium’s efforts to follow the rules, including a review of the project’s incentive program.

Last month, California’s Occupational Health and Safety Board fined Kiewit several thousand dollars after a man doing highway construction work was killed by a falling thousand-kilogram steel beam. The regulator accused the company of not ensuring employees followed the rules, and not properly securing a load “against dangerous displacement.” Kiewit has appealed, and indicated in a statement it was investigating the incident.

Just over three months before Sam Fitzpatrick was killed at work near Toba Inlet, an amphibious plane carrying seven Kiewit employees to that same worksite crashed halfway, encased in fog.

Bodies of the pilot and six passengers were found near the plane’s scorched wreckage.

A federal Transportation Safety Board investigation found that while there was no “overt pressure on the accident pilot to fly” on the day of the accident, the pressure may have been implicit:

“In the case of flights for Kiewit, three types of pressure existed,” the report reads: a desire to get employees home on time; a reluctance to disrupt operations;and “pressure to keep the customer happy.”

Kiewit said at that time it “would never intentionally or knowingly pressure anybody to do anything in an unsafe manner.” A statement Monday added that, “as a result of the crash, Kiewit now demands charters use two pilots and more advanced equipment.”

The selection process that ultimately awarded Kiewit and Flatiron Corp. the Port Mann project evaluated submissions “on a range of criteria that included safety as well as their experience and whether they held a successful track record in completing similar road construction projects,” Transportation Investment Corporation spokesman Greg Johnson said in an email.

“The evaluation involved a panel of experts that included representatives from the Ministry of Transportation.”

Brian Fitzpatrick would like to have a word with that ministry, and its panel of experts. He says his sons were scared to refuse work, and worries others are in the same position.

That February day, he says, his sons had misgivings about going to work. Then Sam turned to his younger brother.